JJRB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2734

JJRB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2734 (12 August 2022)
AppID:JJRB and Minister for Immigration, Citizenship and Multicultural Affairs

MatterType:   Migration
Division:GENERAL DIVISION
File Number(s):2022/4158
Re:JJRB
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:12 August 2022
Date of written reasons: 18 August 2022
Place:Canberra

The Tribunal affirms the decision under review to refuse to grant the Applicant a Protection (Class XA) visa pursuant to subsection 501(1) of the Migration Act 1958 (Cth).
...........................[sgd].............................................
Member W Frost
Catchwords
MIGRATION – decision of delegate of the Minister to refuse application for a Class XA Protection Visa – failure to pass the character test – violent and sexually based offences – Direction 90 – primary and other considerations – protection of the Australian community – expectations of the Australian community – Australia’s non-refoulement obligations – consideration of the interests of minor children – weight to be given to the primary and other considerations – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 43(1)(a)
Migration Act 1958, ss 189, 197C(1), 198(2B), 499, 501(1), 501(3A), 501G, 500(1)(b)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Cases
Ali v Minister for Home Affairs [2019] FCAFC 93
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
Bugmy v The Queen [2013] 249 CLR 571
FYBR v Minister for Home Affairs (2019) 272 FCR 454
JWKG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 21
MKNT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4089
Mursal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1164
MXDK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3762
Pillay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 270
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
Accessed at on 2 August 2022
Accessed at on 2 August 2022
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (8 March 2021)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)
Slavic, M., et. al., Separation from family and its impact on the mental health of Sudanese refugees in Australia: a qualitative study, ANZJPH, 2013, volume 37, number 4, pages 383-388
Sullivan, K., et. al, Public Attitudes in Australia to the Reintegration of ex-Offenders: Testing a Belief in Redeemability (BiR) scale, Eur J Crime Policy Res (2017) 23: 409-424
REASONS FOR DECISION
Member W Frost
18 August 2022
INTRODUCTION

The Applicant, JJRB, sought review by the Administrative Appeals Tribunal (Tribunal) of a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), to refuse to grant him a Protection (Class XA) visa (Visa) under subsection 501(1) of the Migration Act 1958 (Act).[1]
[1] Exhibit 1, G1, pages 4-10.
JJRB was born in Sudan and arrived in Australia on a Refugee and Humanitarian (Class XB) visa in 2007 (Refugee Visa).[2] JJRB has multiple criminal convictions in Australia, including ‘Sexual Intercourse without Consent – Reckless’, for which he was sentenced to two years imprisonment in 2017. JJRB’s Refugee Visa was thereafter mandatorily cancelled under subsection 501(3A) of the Act. In 2018, JJRB applied for the Visa, the subject of this proceeding, but this was refused in April this year. As a result, JJRB applied to the Tribunal for merits review of the decision to refuse him the Visa.
[2] Exhibit 1, G2, page 64; G13, page 271; G14, page 272.
The Tribunal has considered all documents filed in this proceeding pursuant to section 501G of the Act,[3] together with the parties’ respective submissions,[4] and the following additional documents filed by the parties:
[3] Exhibits 1 and 2.
[4] Applicant’s Statement of Issues dated 4 July 2022, Respondent’s Statement of Facts, Issues and Contentions dated 17 July 2022 and Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 25 July 2022 (with annexures).
(a)Summons Bundle filed on 18 July 2022;[5]
[5] Exhibit 3.
(b)Documents produced by the ACT Magistrates Court filed on 22 July 2022;[6]
[6] Exhibit 4.
(c)Statement of JJRB dated 18 June 2022;[7]
[7] Exhibit 5.
(d)Statutory Declaration made by JJRB on 26 July 2022;[8]
[8] Exhibit 6.
(e)Statement of JJRB’s nephew filed on 5 July 2022;[9]
[9] Exhibit 7.
(f)Statutory Declaration made by JJRB’s sister on 6 July 2022;[10]
[10] Exhibit 8.
(g)Psychologist Report of Ms Kris L. North dated 4 July 2022;[11] and
[11] Exhibit 9.
(h)Letter to JJRB containing offer of employment dated 1 July 2022.[12]
[12] Exhibit 10.
For the following reasons, the Tribunal has decided to affirm the decision under review.
BACKGROUND
In 1990, JJRB was born in Sudan.[13] He is 32 years old.[14]
[13] Exhibit 1, G2, page 64.
[14] Ibid.
In 2000, JJRB and his family fled to Egypt to join his father who had fled Sudan the previous year.[15]
[15] Ibid., page 89.
In September 2006, JJRB was granted the Refugee Visa.[16]
[16] Exhibit 1, G14, page 272.
In January 2007, JJRB arrived in Australia on the Refugee Visa.[17]
[17] Exhibit 1, G13, page 271.
In January 2010, JJRB married his now former wife.[18]
[18] Exhibits 5 and 6.
In February 2010, JJRB was convicted of ‘Possess Prohibited Drug’ and fined $600.[19]
[19] Exhibit 1, G2, page 36.
In April 2010, JJRB’s only child was born.[20]
[20] Exhibit 1, G2, page 22.
In June 2011, JJRB was convicted of ‘Possess Prohibited Drug’ for which he was required to comply with an eight month bond.[21]
[21] Ibid., page 43.
In 2013, JJRB and his wife separated.[22]
[22] Exhibit 5.
In August 2013, JJRB was convicted of the following offences:[23]
[23] Exhibit 1, G2, pages 33-36.
(a)‘Drive Motor Vehicle with Alcohol in Blood/Breath’, for which he was fined $100 and disqualified from holding or obtaining a driver’s licence for 1 month; and
(b)‘Use Unregistered/Suspended Vehicle’; ‘Use Uninsured Vehicle’; ‘Fail to Display P-Plates (Not Motorbikes)’; ‘Drive while Licence Suspended by Law’; and ‘Not Comply with Conditions – Conditional Driver Licence’, for each of which he was to be immediately released on condition that he enter into a 12-month good behaviour undertaking.
In June 2014, JJRB was convicted of the following offences:[24]
[24] Ibid., pages 31-33.
(a)‘Possess Offensive Weapon with Intent’, for which he was sentenced to two months’ imprisonment, which was suspended on the condition that he give a good behaviour undertaking for a period of 15 months, with a 12-month probation condition; and
(b)‘Affray’, for which he was sentenced to a term of 1 month imprisonment, but which was also suspended on entering into a good behaviour undertaking for a period of 15 months.
In November 2015, JJRB and his wife divorced.[25]
[25] Exhibit 2, SG5, page 74.
On 5 November 2015, JJRB was convicted of the following offences:[26]
[26] Exhibit 1, G2, page 31.
(a)‘Fail to Appear after bail undertaking-CRT’, for which he was released immediately on entering a $500 recognizance to be of good behaviour for 18 months;
(b)‘Driver/Driver Trainer Prescribed Drug in Oral Fluid/Blood’, being Methylamphetamine, for which he was fined $400 and disqualified from holding or obtaining a licence for 12 months;
(c)‘Drive while Suspension Notice in Effect’, for which he was fined $200;
(d)‘Possess Licence issued to Another’, for which he was fined $100;
(e)‘Drive Motor Vehicle with Alcohol in Blood/Breath’, for which he was fined $300 and disqualified from holding or obtaining a licence for 6 months; and
(f)‘Not Comply with Conditions – Conditional Driver Licence’, for which he was fined $100.
Also on 5 November 2015, JJRB was re-sentenced for his June 2014 convictions of ‘Possess Offensive Weapon with Intent’ and ‘Affray’, because of the breach of his associated good behaviour undertakings.[27] JJRB was sentenced to terms of three and one months’ imprisonment, respectively and released immediately upon entering a $500 recognizance to be of good behaviour for 18 months, with a 12-month probation condition.
[27] Ibid., pages 32-33.
On 14 July 2017, the ACT Supreme Court sentenced JJRB for the following offences:[28]
[28] Ibid., pages 30-31.
(a)‘Sexual Intercourse without Consent – Reckless’, for which he was sentenced to two years’ imprisonment, with the sentence suspended and JJRB released after serving six months’ imprisonment, on the condition that he be of good behaviour for 18 months; and
(b)‘Act of Indecency without Consent’, for which he was sentenced to two months’ imprisonment to be served as full-time detention concurrently with the aforementioned offence.
On 17 August 2017, JJRB’s Refugee Visa was cancelled under the mandatory cancellation power pursuant to subsection 501(3A) of the Act.[29]
[29] Exhibit 2, SG6, pages 103-105.
On 12 January 2018, JJRB was released from gaol and detained at Villawood Immigration Detention Centre under section 189 of the Act.[30]
[30] Exhibit 2, SG2, page 71.
In May 2018, the ACT Court of Appeal dismissed JJRB’s application for leave to appeal, out of time, against the convictions and sentences of imprisonment handed down by the Supreme Court on 14 July 2017 in relation to his sexual offences.[31]
[31] Ibid., pages 27-34.
In December 2018, while in immigration detention, JJRB applied for the Visa the subject of this proceeding.[32]
[32] Exhibit 1, G5, pages 190-226; G6, pages 227-238.
In February 2019, a delegate of the Minister found that JJRB is a refugee, as defined by section 5H of the Act, and that:[33]
[33] Exhibit 2, SG5, page 70.
there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to the Republic of South Sudan there is a real risk the applicant will suffer significant harm. I am therefore satisfied that [JJRB] is a person in respect of whom Australia has protection obligations as outlined in subsection 36(2)(a) and 36(2)(aa) of the Act.
I have not yet considered the criteria referred to in s 36(1A)(a) of the Act or the criteria in Schedule 2 of the Migration Regulations for a Protection (class XA, subclass 866) visa, therefore I have not yet made a decision in relation to whether the applicant meets the criteria for a grant of a Protection visa.
This finding is not an exercise of the power under s65 of the Act.
In August 2019, the Minister’s Department informed JJRB of its intention to consider refusal of his application for the Visa on character grounds pursuant to subsection 501(1) of the Act.[34]
[34] Exhibit 1, G2, pages 77-80.
On 20 April 2022, a delegate of the Minister decided to refuse to grant JJRB the Visa under subsection 501(1) of the Act.[35] JJRB was informed of this decision by way of letter dated 20 May 2022.[36]
[35] Ibid., pages 11-29.
[36] Ibid., pages 11-13.
On 24 May 2022, JJRB applied to the Tribunal for review of the delegate’s decision to refuse to grant him the Visa.[37]
[37] Exhibit 1, G1, pages 4-10.
LEGISLATION & DIRECTION
The Act
Section 501 of the Act relevantly provides that:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
...
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more…
[emphasis in original]
Subsection 500(1)(b) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under section 501 of the Act. Accordingly, the delegate’s decision to refuse to grant JJRB the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body, such as the Tribunal, having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body must comply with such a direction pursuant to subsection 499(2A) of the Act.
On 8 March 2021, the Minister made a written direction under section 499 of the Act, being Direction 90 titled, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s501CA, which commenced on 15 April 2021 (Direction 90).
The Preamble to Direction 90 sets out its objectives and principles, relevantly including that:
(a)a non-citizen who does not pass the character test is liable for refusal of a visa (paragraph 5.1(1));
(b)under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test (paragraph 5.1(2));
(c)where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise the discretion (paragraph 5.1(2));
(d)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community (paragraph 5.2(1));
(e)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));
(f)the Australian community expects that the Australian Government can and should refuse entry to non-citizens if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3));
(g)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (paragraph 5.2(4)); and
(h)decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation (paragraph 5.2(5)).
Paragraph 6 of Direction 90 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations set out at paragraphs 8 and 9 of Direction 90, where relevant to the decision. Paragraphs 8 and 9 of Direction 90 identify the considerations relevant to making a decision under subsection 501(1) of the Act, that is, whether to refuse to grant a visa. They comprise four ‘primary considerations’ and four specified, but non-exhaustive, ‘other considerations’ which must be taken into account in relation to visa applicants.
Paragraph 8 in Direction 90 sets out the four ‘primary considerations’ as follows:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Paragraph 9 in Direction 90 lists ‘other considerations’ that must be taken into account where relevant, which include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Paragraph 7 of Direction 90 states that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for the Tribunal to determine in this proceeding are:
(a)whether JJRB passes the ‘character test’ as defined in subsection 501(6) of the Act; and
(b)if not, whether the Tribunal should exercise the discretion in subsection 501(1) of the Act to refuse to grant JJRB the Visa.
EVIDENCE
JJRB
JJRB provided two written statements to the Tribunal, which have both been considered in making this decision.[38] He also gave evidence at the Tribunal hearing by video from the Immigration Detention Centre on Christmas Island.
[38] Exhibits 5 and 6.
JJRB told the Tribunal that whilst in immigration detention, a period of four and a half years, he resided at Villawood in NSW for one and a half years, Yongah Hill in Western Australia for two months and since then has been on Christmas Island. He recalled undertaking some courses in gaol and detention, including regarding business, how to deal with people, alcohol and drug awareness and harm minimisation. JJRB agreed that he had previously had a drug and alcohol problem. He was visited every second week by his mother, sister, brother and nephews and nieces during his time in gaol in the ACT and at Villawood in NSW. However, he has not had any visitors since being on Christmas Island.
In relation to his sexual offences, JJRB told the Tribunal that his then lawyer had wanted to appeal the conviction and sentence, on JJRB’s instructions, and JJRB said that, at that time, he felt that he was innocent of any wrongdoing. JJRB was referred to his recent Statutory Declaration made on 26 July 2022, in which he said that he had ‘reflected on my actions on the victim’.[39] He told the Tribunal that having spent time in detention, he has had time to consider what he did and the harm he caused to people. JJRB confirmed the genuineness of his statement that if given the chance he would apologise in person to the victim. He also confirmed he was under the influence of alcohol or illicit substances at the time.
[39] Exhibit 6.

JJRB’s Counsel asked him why it had taken him so long to realise his wrongdoing in relation to the victim. He told the Tribunal that he was young at the time, was shocked about what was happening and unsure ‘how to take it’. JJRB said he was ‘ashamed’ for his family, and has now spent time in gaol and detention and learnt a lot about himself and ‘considered a lot of things’. He confirmed that he recently told the Forensic Psychologist, Ms Kris North, that he accepted his conviction and the evidence against him for the sexual offending. JJRB also said that he was 25 at the time, was ‘a little bit confused’, ‘embarrassed’ and did not know how to deal with the offences. He further told the Tribunal he had talked with his mother, brother and sister about this offending and said to them that he was drunk and does not ‘exactly remember anything’. JJRB denied lying during the criminal trial about not knowing that anything had occurred, but that he had said he was not guilty and did not remember ‘exactly how everything went down’. Counsel asked JJRB what dawned on him to accept his guilt for the offending. He told the Tribunal that if he was found guilty he ‘must have done something’, so accepts everything and his mistake. JJRB further said that he sought to appeal his conviction due to advice from his then lawyer.
JJRB confirmed that he was aged 16 when he arrived in Australia with his mother and family. One of his sisters who also gave evidence at the Tribunal hearing, had arrived earlier in Australia and they are in regular contact. He also talks to his brother, other sisters and mother, the latter of whom he speaks to ‘every second day’. JJRB told the Tribunal that, unlike the rest of his family who are Australian citizens, he did not apply for citizenship because at the time he had permanent residency and was told it was similar to citizenship. He also said that he was doing certain things that kept his thoughts away from applying for citizenship, such as working, having a pregnant girlfriend and getting ready for parenthood. JJRB dropped out of school after completing half a year in Year 12 when his girlfriend fell pregnant. Around that time, JJRB first came to the attention of police, just before marrying his girlfriend. Their son was born in April 2010 and they lived in Sydney. After JJRB’s mother moved to Canberra, JJRB, his wife and son also re-located from Sydney and they lived with his extended family. He worked as a removalist in Canberra.
JJRB told the Tribunal that problems arose in his marriage because his then wife wanted their own house and privacy. Around 2011, they looked for their own residence, found a house and moved. Initially, the couple had a good relationship. He worked, came home to his family and read stories to his son. Sometimes he would come home late from work, which was not conducive with family life. After a while, JJRB’s wife did not like him coming home late. This caused difficulties between the couple. They started arguing about JJRB not spending enough time with his family due to work commitments. JJRB reduced his work days to five, but the problems arose again because during busy periods at the end of the year he was coming home late from work. His wife was unhappy and they started arguing a lot, which caused them to drift apart. JJRB’s son was ‘always in the middle’. The couple decided to separate and his wife moved to Sydney in late 2013 or early 2014. JJRB’s son stayed with him for approximately one month and then his wife took him back to Sydney. JJRB told the Tribunal that after his son was again taken away by his mother, JJRB went back to work, became depressed and life ‘kind of spiralled’; he was drinking and taking drugs, which ‘caused me a lot of drama’ and he got into trouble with the police ‘a lot’.
Approximately six months later, JJRB’s son came back to Canberra for one and a half years to live with JJRB’s family. His son came to Canberra because JJRB had gone to Sydney to see his now former wife and arranged for his son to live with him and start school in the ACT, and then for his son to return to his mother in Sydney. JJRB worked at this time and his son was about four or five. The child resided at JJRB’s mother’s house because it was closer to his school and JJRB would spend time with his son after work or take him home. JJRB said that his son’s mother, being his former wife, visited. She has re-partnered. After he went to gaol in 2017, JJRB had no contact with his son because of custody issues with his former wife; she was not cooperative regarding JJRB spending time with his son, who was unable to visit him in gaol in the ACT. Despite his former wife intimating that their son could potentially visit JJRB in Villawood, he said they did not visit, she remarried and cut JJRB off from his son. JJRB confirmed that he has not physically seen his son since the child’s birthday in 2017, before JJRB went to gaol At that time, they spent four or five days together, went out and celebrated JJRB’s son’s birthday.
JJRB told the Tribunal it had been really good to have his son with him in Canberra, JJRB stayed out of trouble, worked, spent time together and helped family. He said it was ‘not good’ being unable to see his son. JJRB stated that he knows his son is taken care of, but is unsure what he is ‘in to’ and how he has changed. It pains JJRB not to see his son or contact him. However, he has recently been able to speak with his son on the telephone. JJRB’s family contacted his former wife and in the July 2022 school holidays his son visited JJRB’s family in Canberra, with JJRB being able to speak with him by video on the phone. He said it was ‘really good’ to speak to his son, to get to know what he is up to and ‘catch up with him’; they talked and laughed. His son is now 12 years old. JJRB is unsure whether his former wife knows that he spoke to his son.
JJRB said he did not think he had told his son why he was in detention, but had said he ‘made some mistakes’ and got into trouble, was gaoled and now in detention and that is why he is unable to see and speak to him, but also because of his former wife not being able to contact him. JJRB said it was ‘really bad’ being estranged from his son. JJRB and his own father were described as being close at one point, but then the latter got into drinking and had problems with JJRB’s mother. JJRB told himself he would not do the same when he had a child, but it is ‘completely different’ to what JJRB wanted to do when he had a son. JJRB said he is ‘trying to reconnect’ with his son, but his former wife is making it difficult. JJRB agreed that he was doing the same thing his father did with him.
JJRB told the Tribunal that, if released into the community, he would work with his brother in Melbourne in his landscaping business. He said that he can be crime free and reintegrate into the community because he is older now and ‘a lot wiser’ than was seven years ago when he committed the sexual offences. He has been thinking and ‘planning on what to do’ and how to live on the outside if he gets the chance. JJRB ‘would like to reconnect’ with his son, work and maybe study. He told the Tribunal that even though his former wife is ‘not allowing’ him to see his son, he will try to get a formal legal right to share custody and have a role in his son’s life either by agreement with his former wife or by court order.
JJRB was asked about what caused him to be charged with possessing an offensive weapon. He said that at the time, his son was not living with him, JJRB’s wife had left and he was drinking and taking a lot of drugs. JJRB said he was going ‘on the wrong path’ in his life and was caught with a knife. He was drunk at the time and ‘about to have a fight’ due to his drinking; he was being ‘careless’ with his life due to the loss of his son and wife. He confirmed that he pleaded guilty to these offences.
JJRB said that he recently told the psychologist, Ms North, that he was depressed. He told the Tribunal that one and a half or two years ago he was getting treatment and last year received counselling. He talked to a psychologist or counsellor and saw them at least twice monthly to talk about how he was feeling and thinking. However, he is not taking medication.
JJRB agreed that he was the ‘author’ of being in immigration detention, but told the Tribunal that he would change his ways. JJRB said that from the time of the sexual offences in April 2015 and up until that trial, he was not involved in any other criminal offending. In this regard, JJRB said the November 2015 sentences were ‘probably’ from offences he committed in 2014 and that there was no offending after the sexual offences in 2015.
By way of cross-examination, JJRB told the Tribunal he was born in Port Sudan and in 2007 moved to Australia. He confirmed that he can speak Arabic and English. JJRB went to primary school in Sudan. He attended secondary school in Australia by completing year 11, but did not finish Year 12, because at the time his girlfriend was pregnant and he started working to provide for his son.
JJRB confirmed that his mother lives in Canberra, in addition to two of his sisters. His brother is located in Melbourne and he also has sisters in Adelaide and Sydney. He was unaware of why only one family member had provided a statement in support of his Tribunal application.
JJRB told the Tribunal that his son lives with the child’s maternal grandmother because it is closer to his school, but that the child visits JJRB’s former wife who lives elsewhere. She has remarried and that couple have a child, with her partner also having another child. JJRB said that his former wife was aware of why he is detained. He had informed her that he went to gaol for sexual offending, got his visa cancelled, and was in detention fighting to get a visa. He was unsure how his former wife feels about his offending, but agreed that she would be required to provide her consent to him seeing his son if he was released into the community. JJRB also agreed that his former wife had previously reneged on an agreement for him to see his son, there was no guarantee that he would be allowed contact and would then seek court orders for access. He was unsure if such orders would be made in his favour. In this regard, JJRB agreed that his ability to see his son was dependent on his former wife agreeing, or the court making orders for access, but also said that it was dependent on his son agreeing to spend time with him. JJRB told the Tribunal that he did not speak to his son any earlier other than very recently because his former wife and her family had moved residence from that previously known to JJRB and his family, so they could not visit his son and JJRB’s former wife had not provided his family with an address to locate his son.
JJRB acknowledged that, as a young child, his son witnessed he and his former wife arguing and he was ‘pretty sure’ it very badly affected his child because JJRB had experienced the same with his parents. JJRB described speaking once or twice each week to his former wife up until this year; they discussed their son and JJRB’s request to speak to him. JJRB denied that there would be elements of uncooperativeness or fighting while he sought to negotiate custody of his son.
In relation to JJRB’s sexual offending and his reference to being sorry for the victim, he confirmed his evidence was that he had time to reflect on that offending and had changed his views on it. He agreed this was a big shift from proclaiming his innocence to now purporting to show remorse.
JJRB was referred to an Offender Intake Data Form completed by ACT Corrective Services in 2017, which listed his attitude to the sexual offences as being that they were ludicrous, insane and did not happen as outlined in the statement of facts and that the sentence was completely unfair.[40] It was put to JJRB that this was a very different point of view to accepting responsibility and showing remorse. He agreed. JJRB also agreed that he wrote a letter in support of his appeal which stated that he was ‘unjustly judged’, innocent and his conviction had an impact on his then Refugee visa.[41] JJRB further agreed that the best outcome of his requested court appeal was for the conviction to be quashed and his visa reinstated. JJRB said it was ‘definitely’ better if the Tribunal finds that he shows remorse and regrets his actions. It was put to JJRB that he does not actually accept that he was guilty of the sexual offences. He said this was incorrect and that five years ago he was unsure and did not know how he got himself ‘into everything’. He did not accept it at the time because he did not ‘believe’ it or was ‘shocked’ about what was happening. That is why he denied the offending and did not believe the judgment was fair. Now, having been in gaol and detention, he has had time to consider what he has done. JJRB pleaded guilty to all previous charges and knew he had committed them. He now accepts that he was guilty of the sexual offences. He is remorseful for that offending and said he is ‘completely changed from that person’; he told the Tribunal that he is a little bit older and wiser than at that time. JJRB confirmed that his evidence was that if he was found guilty, he must have committed the offences. He denied this was different to accepting that he committed the offence and told the Tribunal that he does accept that he was guilty. He further stated that he accepts the facts of the offending as set out in the sentencing remarks of the ACT Supreme Court, but denied that he lied to police.[42] He said he was ‘confused’ at the time. When asked whether he remembered doing the acts for which he was convicted, JJRB said, ‘I guess so, yeah’ and further stated that it was seven years ago, he was under the influence of drugs and alcohol, he does not completely remember it, but ‘guess it did happen’. The Minister’s representative asked JJRB whether he guessed that the offences as described in the sentencing remarks happened and he replied, ‘Not really’.
[40] Exhibit 3, SB1, page 932.
[41] Ibid., page 625.
[42] Exhibit 1, G2, page 45.
JJRB agreed that his sexual offending had a significant impact on, and very significant consequences for, the victim. He also agreed that he has a lengthy history of criminal offending in the ACT and NSW and that the Criminal History Check produced in this proceeding was accurate.[43]
[43] Exhibit 1, G2, pages 30-36.
JJRB was referred to the offence of ‘Affray’ committed in August 2013. He recalled the incident and agreed with the Police Statement of Facts, but denied that he approached police, as described, and said this was one of his friends.[44] However, JJRB agreed that he pleaded guilty to this offence and that it involved high levels of physical violence between a group of males in a public place and the potential to damage property of a member of the Australian community.
[44] Exhibit 3, SB2, page 985.
JJRB was also referred to the Police Statement of Facts for the offence of ‘Possess offensive weapon with intent’ committed in December 2013.[45] He recalled the incident and agreed with the description, including that he took a knife out and started swinging it at three people. He agreed that he pleaded guilty to this offence, that it was a violent action and that he could have caused significant harm if he had made contact with anyone, but said that he was protecting himself.
[45] Ibid., pages 993-996.
JJRB also agreed that he was twice convicted of possessing a prohibited drug, being cannabis.[46] He was referred to his Statutory Declaration in which he said that he ‘started dealing weed to make extra money’.[47] He agreed that this statement was correct, but said he was not dealing at the time he was apprehended by police; the drug was for his ‘personal use’. However, JJRB did not deny dealing cannabis, which he told the Tribunal occurred ‘around 2009’.
[46] Exhibit 1, G2, page 36.
[47] Exhibit 6.
JJRB was further referred to the Police Statement of Facts regarding the incident in July 2015, which led to him being charged and convicted of ‘Drive Motor Vehicle with Alcohol in Blood/Breath’ and ‘Not Comply with Conditions – Conditional Driver’.[48] He recalled being stopped by police. JJRB was then referred to his previous evidence to the Tribunal that he had not offended after the sexual offences in April 2015, however he agreed under cross-examination that he had offended after his sexual offending. He also agreed that he had committed a further three driving offences later that year during an incident in August 2015, which was again after his sexual offending.[49] In this regard, JJRB agreed that it was incorrect for him to have told the Tribunal that he had not offended after the sexual offences in April 2015.
[48] Exhibit 3, SB2, pages 1042-1045.
[49] Ibid., pages 1050-1053.
JJRB agreed that the courts had given him a number of opportunities to move away from further criminal offending and that he had failed to comply with these opportunities. JJRB was referred to an ACT Corrective Services ‘Case Management Plan’ from August 2014, which stated that he ‘minimized responsibility for current offence’, being ‘Affray’ and ‘Possess Weapon with Intent’, and it was put to JJRB by the Minister’s representative that there was a theme of him minimising his offending and involvement at the time or close to the time of offending.[50] JJRB agreed that, at the time, he did minimise his offending and responsibility, but did not agree that he does so now.
[50] Exhibit 3, SB1, pages 586-587.
JJRB accepted that breach action was taken against him due to his non-compliance with good behaviour orders and that he had offended while subject to them.[51] JJRB was asked whether, if released, the Tribunal would be relying on him to put measures in place so that he does not reoffend. JJRB referred to being told by the psychologist and his lawyer that he would return to being on probation and be required to see probation officers, however he agreed that the term of the last good behaviour order had expired.[52] In response to a question about how he will meet any obligations given his non-compliant history, JJRB said that he will do so because all he wants at the moment is to ‘reconnect’ with his son, work for his brother and be a decent person and live abiding the law. He wants to see his father’s grave and spend time with, and help, his family. JJRB told the Tribunal that at the time of the sexual offences he was about 25 and ‘going through the wrong path’, drinking, partying and getting into trouble. He said that he does not want to be the same person, who brought shame to everyone. JJRB further stated that, if given the chance, he will prove himself a ‘different person’ who will not break the law, and will be a good person for the community.
[51] Ibid., page 6.
[52] Ibid., page 151.
JJRB agreed that he had committed offences after he returned to live with his mother in 2015 and that this was after his former wife took his son. He also agreed that he was employed during periods of his offending.
JJRB told the Tribunal that from the drug and alcohol course he had undertaken in gaol he had learnt to minimise consumption or stop completely, including drugs, and that they usually affect or impair judgment as to how to interact or deal with people. He agreed that he had in the past ‘maybe’ struggled to make the right decisions when presented with challenging situations. While JJRB agreed that, if returned to the community, he is likely to face challenging situations such as re-forming a relationship with his son or reintegrating into society, he said that he would have help through his family and previously had not asked for assistance which led to ‘bad decisions’. JJRB plans to initially live in Canberra with his mother and again work as a removalist temporarily before moving to Melbourne to work for his brother. He told the Tribunal he would have a ‘different mentality’, he has a lot to prove to his son, himself and the community, he does not think he is the same person and now see things completely differently.

While JJRB agreed that he had previously associated with individuals involved in criminal activity, he told the Tribunal that these connections ended when he was gaoled in 2017. He does not associate with any of these people and, having spent time in detention thinking about how to carry himself in the community, he wants to change his life and ‘focus on more important things’ like working, studying, helping family and reconnecting with his son.
JJRB was referred to records of incidents in immigration detention in April and August 2020.[53] He recalled these incidents but denied any wrongdoing, noting that no adverse findings were made against him. JJRB said that he had associated with people in detention whom he had previously known so as to prevent loneliness and ‘thinking about things’, but had no contact with them for two years. He told the Tribunal that in detention he goes to the gym, plays soccer and basketball and two days a week does cooking lessons and also some gardening. He stopped attending counselling sessions because he was not able to see anyone with a counselling or psychology background. He confirmed that he is not currently on any medication for mental health or other issues, but that he was previously diagnosed with anxiety and depression by a rehabilitation centre in the ACT. While acknowledging that he had previously arranged mental health treatment but not attended, JJRB said he will get assistance from his family and is not opposed to attending a counselling or rehabilitation service.[54] However, JJRB agreed that he had not completed an adult sexual offenders program and recalled an assessment that he was a moderate to high risk of sexual offending.[55] JJRB also agreed that he had used drugs and alcohol up until he was gaoled in 2017 and that there was a link between that usage and his offending. JJRB told the Tribunal that, if released into the community, he does not ‘intend to go back’ to drinking and drug use and would seek help.
[53] Exhibit 2, SG3, pages 39 and 44.
[54] Exhibit 3, SB1, page 8.
[55] Ibid., page 719.
JJRB told the Tribunal that he assumed that the recent psychologist report referring to him being assessed as ‘meeting the criteria for Adjustment Disorder, With mixed anxiety and depressed mood’, ‘Alcohol Use Disorder, Moderate’ and ‘Cannabis Use Disorder, Mild’ prior to entering custody was a recent assessment by Ms North of his state at that time in 2017 based on JJRB’s report and that these diagnoses had not previously been made.[56]
[56] Exhibit 9, page 2.
JJRB was referred to the reference in Ms North’s report to a package containing the contraband, Suboxone, which contains the drug Buprenorphine, being addressed to him in immigration detention and his denial of any involvement.[57] He told the Tribunal that he did not know why someone had addressed this package to him if he was not the intended recipient, he only expected and received packages from two people from known sources and only his family and people who visited him in Sydney knew he was in detention. He agreed this episode was unusual but that it ‘happens a lot’ to people in detention.
[57] Ibid., page 7. See also Exhibit 1, G2, pages 100-101.
JJRB agreed that at the time he entered prison, he was assessed using the same tool that rated him a moderate to high risk of sexual reoffending.[58] He accepted that Ms North concluded that he remains an average risk of reoffending within the range of sexual offenders and that this risk could reduce for individuals with appropriate treatment. JJRB also accepted that this risk remained notwithstanding that he has done certain courses and says he would not reoffend. To this end, JJRB agreed with the proposition that, if the Tribunal considers him still a risk of reoffending, it will need to be confident that he would engage with appropriate treatment to lower that risk.
[58] Exhibit 9, page 11.
The Minister’s representative asked JJRB about his nine nieces and nephews.[59] He said they spent time together, went to and played soccer games and talked. JJRB last saw six of his nieces and nephews in person while he was in immigration detention at Villawood. He also spoke to two of them last month and on average this contact with his nieces and nephews occurs fortnightly. JJRB agreed that all his nieces and nephews have parental figures in their lives. He ‘occasionally’ contributes financially such as at Christmas or on their birthdays.
[59] Exhibit 1, G2, page 70.
JJRB told the Tribunal that he thought he was physically healthy, despite not having a medical check for some time and confirmed that he attends the gym, plays sport and undertakes educational programs in immigration detention. A pre-sentence report from ACT Corrective Services from 2015 noted that JJRB ‘claimed he is currently an active member of his church’ and that he ‘undertook limited pro-social activities in the community’.[60] He was asked about any volunteering he has undertaken while in Australia and told the Tribunal that he had ‘not necessarily, no’, but did play organised soccer in the community for a period of time. When asked about any other community involvement, JJRB referred to his employment as a labourer in the construction industry and as a removalist in the ACT. He discontinued a TAFE course in Sydney to undertake employment before the birth of his son. JJRB agreed that he had been dismissed from employment on multiple occasions.
[60] Exhibit 3, SB1, page 8.
By way of re-examination, JJRB was asked about how he felt about his son witnessing some of the arguments he previously had with his former wife. He told the Tribunal this was one of the reasons he chose to separate from his wife because he had always seen arguments between his own parents. JJRB said he would always try to leave before his son saw them arguing, but once his son had seen them arguing and started crying. JJRB felt bad and did not want him to see this and consider it normal behaviour between parents. He said that if there were arguments in the future with his former wife, including when his son was present, JJRB would seek to deescalate them, but leave if they continued.
JJRB’s Counsel asked him about the availability of an adult sexual offender program while he was in gaol in the ACT. He said that he was only offered the two programs that he completed, and a third program was to start afterwards, but he had already spent six months in gaol and was then released. He confirmed his willingness to engage with a psychologist if released to the community and to undertake a program regarding consent. JJRB said the last time he took any illicit substances was approximately five years ago. He told the Tribunal that he was not aware of any adult sexual offenders program being available in immigration detention, he had not been offered the opportunity to undertake such a course and these were usually offered if there was a particular problem, but agreed that he had not enquired about any such program.
JJRB’s sister
One of JJRB’s sisters made a Statutory Declaration on 6 July 2022, which was filed in this proceeding and considered by the Tribunal in determining this application.[61] JJRB’s sister also gave evidence at the hearing in person. JJRB’s sister told the Tribunal that she speaks to JJRB weekly and sometimes fortnightly to check on him. JJRB’s mother also talks to him and lets his siblings know that he is well. She told the Tribunal that JJRB’s siblings have discussed how best to support him if released into the community, including to have a strong relationship with his son. In this regard, JJRB’s sister confirmed that he can work with his brother in a labouring role and JJRB had discussed this opportunity and seeking to gain partial custody of his son, whom he recently spoke to by video. JJRB’s sister said her brother was ‘in tears’ because he could not believe he was speaking to his son after trying to re-connect with him for five years.
[61] Exhibit 8.
JJRB’s sister told the Tribunal that the family is trying hard to make JJRB’s son understand the situation, but he thinks his father was ‘never there’ since his birth and has ‘negative ideas’ of JJRB. However, JJRB’s family have told his son about the time he spent living in Canberra with his father and he has started to recall and reconnect with his cousins. He was said to be happy and excited, sometimes emotional, but cannot wait to return for another visit.
JJRB’s sister said that she has gauged a change in her brother from what she knows and understands from their conversations. Although they have not seen each other for a long time, she said JJRB went into gaol as a ‘kind-hearted person’ and was now ‘trying really hard to get out’ and do his best for his son. In this regard, JJRB’s sister said his son was ‘getting lost’ and ‘doesn’t know what’s happening’ to his father; he needs his father to guide him and ‘a big part of our culture’ is lost on JJRB’s son. The family try hard, but JJRB’s son needs his father to show him what it is like to be an African man, including regarding their heritage and culture. JJRB’s sister said that since her brother has lost his freedom, she knows the toll it has taken on him; he struggles and will not take another chance for granted. She confirmed that they would work on ongoing contact between JJRB and his son and that he would seek shared custody.
JJRB’s sister said they had discussed his past conduct ‘here and there’ and her brother suffers ‘some sort of trauma’, and will need to deal with it and see someone to address this issue on a regular basis. JJRB’s sister said she was prepared to help her brother get the required assistance. She said that JJRB’s violence and anger manifested from his trauma, which led him to act irrationally in many ways. JJRB’s sister said he had told her the story of what happened at the time of the sexual offending. She knows that JJRB ‘regrets’ his actions, but although he was convicted, he had said that he did not commit these crimes.
Under cross-examination, JJRB’s sister told the Tribunal that his son’s maternal family had told the child that his father never saw him or supported him, which was false because JJRB’s son had lived with JJRB and his family in Canberra. JJRB’s family had maintained contact with his son until JJRB’s former wife remarried and ‘everything changed’ and she was uncontactable. Despite this, JJRB’s sister acknowledged that his son’s mother is ‘very caring’, looks after him and that he has a parental figure in his life in the community. While she agreed there was tension between the families, JJRB’s sister knows that his former wife has never said JJRB cannot see his son, this only occurred when he was in gaol and detention and she understands JJRB’s former wife will ‘make the right decision’ to share custody of their child for JJRB to be in his son’s life.
JJRB’s sister confirmed that she is aware of her brother’s offending, including the sexual assault offences, drink driving, substance abuse, unlicensed driving and fights, including against police. The last time she spoke to JJRB about his sexual offences he said he did not commit them and she believed him.
In re-examination, JJRB’s sister confirmed that JJRB had told her at the time of his trial in 2017 that he did not commit the sexual offences, but that ‘now he understands’. She later confirmed to the Tribunal that JJRB accepts that he did ‘something wrong’ and believes he is a ‘changed man’ and regrets his actions.
JJRB’s sister also said that her brother had ‘always helped’ with her four children and ‘always been there’; he has very strong bonds with her children. In this regard, JJRB’s sister told the Tribunal that in their culture there is a prominent role for an adult male in raising boys and for her sons JJRB, and their other uncles, are like ‘a father figure’ because she has no male partner.
CONTENTIONS
JJRB
JJRB accepted that he does not pass the character test under subsection 501(6) of the Act because he has a ‘substantial criminal record’, as defined by subsection 501(7). However, JJRB contended that Primary Consideration 3 in Direction 90, the best interests of minor children in Australia, weighs in favour of granting him the Visa. Additionally, while JJRB accepted responsibility for his offending, he submitted that this should be viewed through the prism of his background and vulnerabilities as a refugee and that the Tribunal should be satisfied that the risk that JJRB will re-offend may be mitigated by his reformation, his abstinence from alcohol and drug consumption, engagement with rehabilitative programs and the availability of support upon release.
JJRB further contended that the three relevant ‘other considerations’ in Direction 90, being Australia’s international non-refoulment obligations, the extent of impediments if removed and links to the Australian community all weigh in favour of not exercising the discretion to refuse him the Visa. It was submitted that there is a real prospect that JJRB will suffer serious harm on return to South Sudan or alternatively face indefinite detention in Australia in circumstances where non-refoulement obligations are owed to JJRB. He contended that significant weight should be given to Australia’s international non-refoulment obligations in favour of not exercising the discretion in subsection 501(1) of the Act and that the decision under review should therefore be set aside and the Visa granted to JJRB.
The Minister
The Minister contended that JJRB does not pass the character test as defined in section 501 of the Act, because of his ‘substantial criminal record’. Therefore, the Minister submitted, the only basis upon which the Tribunal could set aside the decision under review is if it is satisfied that the discretion in subsection 501(1) of the Act should not have been exercised to refuse to grant JJRB the Visa.
To this end, the Minister contended, Primary Consideration 1 and Primary Consideration 4 in Direction 90, being the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community, both weigh strongly in favour of affirming the reviewable decision. Additionally, it was submitted, to the extent that Primary Consideration 3, being the best interests of minor children in Australia, and any relevant other considerations are found to weigh in favour of JJRB, they are outweighed by Primary Consideration 1 and Primary Consideration 4 and the Tribunal should affirm the decision under review.
CONSIDERATION
Does JJRB pass the character test under the Act?
Subsection 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the ‘character test’.
Under subsection 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’, as defined by subsection 501(7) of the Act. Pursuant to subsection 501(7)(c) of the Act, a person has a substantial criminal record if the person has been ‘sentenced to a term of imprisonment of 12 months or more’.
In July 2017, JJRB was sentenced to term of imprisonment of two years by the ACT Supreme Court for ‘Sexual Intercourse without Consent – Reckless’.[62] This sentence was suspended and JJRB was released from gaol after serving six months on the condition that he be of good behaviour for 18 months.
[62] Exhibit 1, G2, pages 30-31.
As the Full Court of the Federal Court of Australia said in Ali v Minister for Home Affairs:[63]
if an applicant is sentenced to a term of imprisonment of 12 months or more, such a sentence, even if suspended, amounts to a “substantial criminal record” for the purposes of s 501(7)(c) of the Act.
[63] [2019] FCAFC 93 at [20]. Citing, with approval, Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 at [114].
In circumstances where JJRB was sentenced to a term of imprisonment of 12 months or more, and despite his two year custodial sentence being suspended after he served six months in gaol, the Tribunal finds that he has a ‘substantial criminal record’ pursuant to subsection 501(7)(c) of the Act. Accordingly, the Tribunal finds that JJRB does not pass the character test as defined under subsection 501(6)(a) of the Act. The Tribunal also notes that JJRB conceded that he does not pass the character test under the Act.
Should the Tribunal exercise the discretion in subsection 501(1) of the Act to refuse to grant JJRB the Visa?
As a result of the Tribunal’s finding that JJRB does not pass the character test under the Act, it turns to consider whether the discretion in subsection 501(1) should be exercised to refuse to grant him the Visa.
In accordance with subsection 499(2A) of the Act, the Tribunal must comply with Direction 90 in making a decision regarding the exercise of the discretion in subsection 501(1). Paragraph 5.1(4) of Direction 90 relevantly provides that the purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under section 501 of the Act. Accordingly, the Tribunal sets out below its decision against the criteria in Direction 90.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of Direction 90 states that:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)   Decision-makers should also give consideration to:
a)     the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of JJRB’s conduct
Paragraph 8.1.1 of Direction 90 sets out a list of factors that decision-makers must have regard to in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, which relevantly includes:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
…
c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending…
JJRB has been convicted of a number of offences in Australia, including sexual and violent crimes.[64]
Sexual offences
[64] Exhibit 1, G2, pages 30-36.
In March 2017, a jury found JJRB guilty of two sexual offences committed in April 2015.[65] The offences were ‘Sexual Intercourse without Consent – Reckless’ and an ‘Act of indecency without Consent’.[66]
[65] Ibid., pages 44-49.
[66] Ibid., pages 30-31.
On 14 July 2017, JJRB was sentenced by then Chief Justice Murrell of the ACT Supreme Court and Her Honour’s sentencing remarks are set out in detail below:[67]
[67] Ibid., pages 45-46.
The offence of engaging in sexual intercourse without consent carries a maximum penalty of 12 years’ imprisonment.
The offence of committing an act of indecency without consent carries a maximum penalty of seven years’ imprisonment.
Facts
On the night of 18 April 2015, the victim accompanied a friend to Civic. During the evening, the friends consumed alcohol at several nightclubs. They met the offender.
The offender consumed alcohol during the evening.
In the early hours of 19 April 2015, the victim, her friend, the offender and others went to the offender’s home. Eventually, the victim went to a spare room where she lay down and fell asleep.
The victim awoke to find the offender digitally penetrating her (Count 1). He had unzipped her dress and was kissing her back between the shoulder blades (Count 2). The victim pushed the offender’s hand away. He smiled and told her to “relax”. She told the offender that she needed to go to the bathroom. She attempted to do so but was unable to open the door as it had no handle. The offender assisted her to open the door and she left the room. The victim found her friend and told her what had occurred.
The victim and her friend telephoned the police and called a taxi. A few hours later, the police spoke to the victim. They obtained a mixed DNA profile from the victim’s back that appeared to contain the offender’s saliva, corroborating the victim's account of the offender kissing her between the shoulder blades.
On 20 April 2015, the offender was arrested. He was granted bail on the following day. Consequently, he has spent one day in custody in relation to these offences.
In a police interview, the offender stated that he had “passed out” in the room occupied by the victim, but he denied assaulting her.
Victim impact
The Court acknowledges the very significant impact that the offences have had and continue to have upon the victim.
The victim made a victim impact statement in which she stated that, immediately after the offences, she had to take a week off work. Because of the criminal proceedings, she has been unable to sit scheduled examinations, has forfeited examination fees and has had to delay her graduation.
The offences continue to have a significant impact the victim. She consults a psychologist. She still feels emotional and angry about the offences and harbours irrational feelings of self blame. The victim no longer enjoys dancing and socialising at venues frequented by others of African background, partly because she fears encountering the offender or his friends. On one occasion she encountered the offender’s friends and became very anxious and self-conscious.
It has been difficult for the victim to disclose the offences to her family and she has only recently disclosed the offences to her mother.
In short, the offences have significantly impacted the victim’s personal, professional and social lives. Although the incident occurred more than two years ago, she continues to experience significant problems
Objective seriousness
Without detracting from the seriousness of the offences and their significant impact upon the victim, it is nevertheless obvious that the offences do not fall into the worst category of offences of their type.
The sexual intercourse involved impulsive, brief, digital penetration. The definition of sexual intercourse in the Crimes Act covers a range of conduct, including digital and penile penetration: Crimes Act s 50(1). It always depends on the particular circumstances, but digital penetration is often less serious than penile penetration.
The act of indecency was brief and the nature of the act was not of the worst kind. For example, an act of kissing or touching a genital area or the breasts generally involves a more significant violation than that which occurred in the present case.
The matters to which I have referred support the offender's submission that the objective seriousness of each offence was towards the lower end of the range. On the other hand, the offender took advantage of the fact that the victim was vulnerable in the sense that she was asleep and was a guest in his household. Further, the offender did not immediately desist when the victim indicated that his approach was unwelcome.
I accept the offender’s submission that, although the act of indecency involved separate conduct, it was part of the brief encounter at the core of which was the sexual intercourse. I will take the relatively unusual course of imposing a totally concurrent sentence in relation to the act of indecency.
Subjective circumstances
The offender is now 27 years old. At the date of the offences he was 25 years old.
The offender was born in Sudan. As a child in Sudan, the offender witnessed very traumatic events including witnessing killings. His father was tortured and has permanent disabilities as a result.
When he left Sudan, the offender spent seven years in Egypt, where he attended school In 2007, at 17 years of age, the offender came to Australia as a refugee.
The offender enjoys a good relationship with his mother and siblings. He married at 20 years of age and has a 7-year-old son to his ex-wife. The offender's ex-wife and son reside in Sydney. Currently, the offender has no contact with his son, but that is a situation which he hopes to remedy.
After he arrived in Australia, the offender worked for about a year in the construction industry, then returned to school to complete Year 11 and part of Year 12. Since then, he has generally been engaged in unskilled construction work. However, for the past 12 months, the offender has been largely unemployed.
The offender suffers from depression, primarily related to his employment status. He is not currently receiving treatment.
It is likely that the commission of the present offences was related to the offender’s consumption of alcohol and/or drugs on the night in question. A number of other matters in his criminal history appear to be related to alcohol or substance use.
In the past, the offender has consumed alcohol to excess. He maintains that he now consumes alcohol only about once a week. In the past, the offender has engaged in interventions to address the alcohol problem.
The offender’s continuing substance abuse, especially the use of cannabis, represents a moderate problem and would benefit from treatment.
The offender’s prior criminal history includes convictions for: possessing an offensive weapon with intent which occurred in December 2013 (two months’ imprisonment suspended on the offender entering a 15-month good behaviour order from 30 June 2014); affray which occurred in August 2013 (one month’s imprisonment suspended on the offender entering a 15-month good behaviour order from 30 June 2014, concurrent with the suspended sentence for possessing an offensive weapon); driving matters; and minor drug matters.
On 5 November 2015, the offender was resentenced for a breach of the good behaviour orders for the offences of affray and possess offensive weapon. After he was resentenced, the offender engaged satisfactorily with ACT Corrective Services, resulting in the early termination of supervision.
It is relevant that the offender was on conditional liberty at the time the current offences were committed. He has no prior history of committing sexual offences.
In relation to the offences before the Court, the offender maintains his innocence. He is neither remorseful nor contrite. His attitude has not assisted with the victim’s recovery.
The author of the pre-sentence report assessed the offender as at a moderate risk of sexual re-offending. The author of the report considered that he would benefit from supervision that addressed issues of sexual offending, substance abuse and employment.
…
Sentencing purposes
In the present case, relevant sentencing purposes include adequate punishment, general and personal deterrence, accountability, denunciation and recognition of harm to the victim. It is important for the Court to send a message that offences of sexual violence against women will not be tolerated.
Rehabilitation is also a significant sentencing consideration. While there is a significant difference between a 19-year-old (who has only just attained his majority, as in Ballantyne) and a 25-year-old (the offender), the offender is still a relatively young man with a limited criminal history who has not previously been imprisoned.
Relevant considerations
I am required to consider the matters in s 33 of the Crimes (Sentencing) Act 2005 (ACT) insofar as they are known and relevant. I have referred to the relevant factors above.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Ordinarily, significant offences of sexual assault will result in sentences of full-time imprisonment. The ACT Sentencing Database statistics show that 83 per cent of s 54 offenders receive sentences of full-time imprisonment, 12 per cent receive partially suspended sentences and only 5 per cent receive fully suspended sentences. Sentences are generally in the range of three to five years.
Sentence
Having regard to the maximum penalty, although the objective seriousness of the sexual intercourse offence is low to moderate and there are reasonably strong subjective features, the only appropriate penalty is a sentence of imprisonment. Further, the sentencing purposes to which I have referred dictate that a short but significant period should be served by way of full-time imprisonment.
The offender is convicted of each offence.
For the offence of committing an act of indecency, he is sentenced to two months' imprisonment from 13 July 2017 to 12 September 2017.
For the offence of engaging in sexual intercourse without consent, he is sentenced to two years' imprisonment from 13 July 2017 to 12 July 2019. The first six months of that sentence, the period from 13 July 2017 to 12 January 2018, is to be served by way of fulltime imprisonment. The remaining period of 18 months is to be suspended upon the offender entering into an 18-month good behaviour order. The good behaviour order is to be subject to the additional condition that, within two working days of being released from custody, the offender is to report to ACT Corrective Services and thereafter he is to submit to the supervision of the Services for as long as they deem necessary [emphasis in original]

In May 2018, the ACT Court of Appeal dismissed JJRB’s application for leave to appeal this conviction and sentence out of time.[68]
[68] Exhibit 2, SG2, pages 27-34.
Based on the evidence before the Tribunal, it is satisfied that JJRB has engaged in sexual crimes which, pursuant to paragraph 8.1.1(1)(a)(i) of Direction 90, are crimes that are viewed very seriously by the Australian Government and the Australian community. For the avoidance of doubt, the Tribunal also finds these sexual crimes committed by JJRB to be very serious, including having regard to the victim’s vulnerability at the time of the offending and JJRB’s initial disregard for her lack of consent.
Driving and drug offences
In August 2008, JJRB was issued a learner licence.[69] In 2010, JJRB received fines for not complying with the conditions of his learner licence due to being unaccompanied by a licensed person and not displaying his learner plates.[70]
[69] Exhibit 3, SB4, page 1130.
[70] Ibid., page 1130.
In 2010 and 2011, JJRB was convicted in NSW Local Courts of possessing a prohibited drug, being cannabis.[71] His sentences included fines and a good behaviour bond.[72] JJRB also admitted in his evidence to the Tribunal that he had engaged in dealing drugs in or around 2009, although he has not been convicted of any such offence.
[71] Exhibit 1, G2, page 36.
[72] Ibid.
In August 2013, JJRB was convicted in the ACT Magistrates Court of the following offences:[73]
(a)‘Drive Motor Vehicle with Alcohol in Blood/Breath’, for which he was fined $100 and disqualified from holding or obtaining a driver’s licence for 1 month; and
(b)‘Use Unregistered/Suspended Vehicle’; ‘Use Uninsured Vehicle’; ‘Fail to Display P-Plates (Not Motorbikes)’; ‘Drive while Licence Suspended by Law’; and ‘Not Comply with Conditions – Conditional Driver Licence’, for each of which he was to be immediately released on condition that he enter into a 12-month good behaviour undertaking.
[73] Ibid., pages 33-36.
On 5 November 2015, JJRB was convicted in the ACT Magistrates Court of the following relevant driving offences:[74]
(a)‘Driver/Driver Trainer Prescribed Drug in Oral Fluid/Blood’, being Methylamphetamine, for which he was fined $400 and disqualified from holding or obtaining a licence for 12 months;
(b)‘Drive while Suspension Notice in Effect’, for which he was fined $200;
(c)‘Possess Licence issued to Another’, for which he was fined $100;
(d)‘Drive Motor Vehicle with Alcohol in Blood/Breath’, for which he was fined $300 and disqualified from holding or obtaining a licence for 6 months; and
(e)‘Not Comply with Conditions – Conditional Driver Licence’, for which he was fined $100.
[74] Exhibit 1, G2, page 31.
Based on the evidence before the Tribunal, pursuant to paragraph 8.1.1(1) of Direction 90, it finds that JJRB’s offences of driving while under the influence of alcohol and drugs while his driver licence was suspended was serious conduct that placed the safety of the Australian community at risk of serious harm. In this regard, JJRB’s learner driver licence did not allow him to have any alcohol or drugs in his system, but he consumed both and drove while his licence was suspended. As the Tribunal said in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561, at [45]: ‘the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant’. For completeness, the Tribunal does not find that JJRB’s two convictions for drug possession, in 2010 and 2011, which the evidence does not disclose were related to driving offences, are serious under Direction 90. However, the Tribunal does find that JJRB’s acknowledged conduct in dealing drugs while living in the community, despite having no recorded conviction, is serious conduct pursuant to Direction 90 that had the potential to do significant damage to members of the Australian community.
Violent offences
In June 2014, JJRB was convicted in the ACT Magistrates Court of the following offences:[75]
(f)‘Possess Offensive Weapon with Intent’, for which he sentenced to two months’ imprisonment, which was suspended on the condition that he give a good behaviour undertaking for a period of 15 months, with a 12-month probation condition; and
(g)‘Affray’, for which he was sentenced to a term of 1 month imprisonment, to be served concurrently, but which was suspended on entering into a good behaviour undertaking for a period of 15 months.
[75] Ibid., pages 31-33.
On 5 November 2015, JJRB was re-sentenced by the ACT Magistrates Court for his abovementioned violent offences in 2014 because of the breach of his associated good behaviour undertakings.[76] JJRB was sentenced to terms of three and one months’ imprisonment, respectively, and released immediately upon entering a $500 recognizance to be of good behaviour for 18 months, with a 12-month probation condition.
[76] Exhibit 1, G2, pages 32-33.
While the Tribunal accepts on the evidence that this offending did not result in any physical harm to anyone, the Tribunal is satisfied that JJRB has committed violent crimes which, pursuant to paragraph 8.1.1(1)(a)(i) of Direction 90, are crimes that are viewed very seriously by the Australian Government and the Australian community. The Tribunal also finds these violent crimes committed by JJRB to be very serious.
Conclusion on the nature and seriousness of JJRB’s offending
While JJRB’s sentence for his sexual offending was towards the lower end of the sentencing spectrum for those offences, the overall seriousness of that offending is reinforced by him being sentenced to two years’ imprisonment for ‘Sexual intercourse without Consent – Reckless’ following his receipt of suspended sentences and entering into good behaviour orders for multiple other offences, including violent crimes and serious driving offences, as detailed above in these reasons. Plainly, a sentence of imprisonment is the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the sexual offending. While the sentencing judge found that the objective seriousness of the sexual intercourse offence is low to moderate, did not ‘fall into the worst category of offences of their type’, and that there were reasonably strong subjective features, Her Honour nevertheless held that the only appropriate penalty for JJRB was imprisonment, with a short but significant period to be served by way of full-time incarceration.[77]
[77] Exhibit 1, G2, pages 46 and 48.
JJRB arrived in Australia in 2007 and engaged in reasonably frequent and varied offending from 2010 to 2015, including serious driving offences and sexual and violent crimes, the cumulative effect of which is very serious, although he has not offended since being imprisoned in 2017. There is also a trend of increasing seriousness in JJRB’s offending, exhibited by his convictions in 2010 and 2011 for drug possession, followed by serious driving convictions in 2013, convictions for violent crimes in 2014 and then his sexual offending in 2015. To the extent that JJRB sought to minimise some of his offending, evident in his testimony to the Tribunal regarding the violent offences from 2014, the Tribunal is not satisfied that this excuses his conduct and it demonstrates a refusal to fully accept responsibility for some of his actions for which he was convicted, which weighs against JJRB.
The Tribunal finds that the cumulative effect of JJRB’s repeated offending exacerbates its seriousness and it does not accept the submission that this offending should be viewed through the prism of JJRB’s vulnerabilities to moderate his ‘culpability’ for the offences,[78] including being a refugee in Australia, his parents’ marital issues, being unaware or having not addressed his trauma, having psychological issues, social disadvantage, an unstable childhood where he witnessed violence, his own marital discord and his abuse of alcohol and drugs.[79] While these matters, coupled with JJRB’s youth, provide some context for, and some, such as alcohol and drug use, which may have contributed to his offending, there is no excuse for sexual or violent crimes, including of the nature committed by JJRB.[80] Moreover, the task of the Tribunal is not to assess JJRB’s culpability for his offending. That is the role of the courts and they have found him guilty of multiple serious offences, including violent and sexual crimes. The Tribunal’s task in this proceeding is guided by the Act and Direction 90.
[78] Applicant’s Statement of Issues dated 4 July 2022.
[79] See also Applicant’s Reply to Respondent’s Statement of Facts, Issues and Contentions dated 25 July 2022.
[80] Exhibit 9.
Having regard to all the evidence and relevant considerations in paragraph 8.1.1 of Direction 90, the Tribunal finds that this limb of Primary Consideration 1, the nature and seriousness of JJRB’s conduct, weighs heavily in favour of exercise of the discretion to refuse to grant JJRB the Visa under subsection 501(1) of the Act.
The risk to the Australian community
Paragraph 8.1.2 of Direction 90 states as follows:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Tribunal is satisfied that the nature of the potential harm that would be caused if JJRB were to reoffend is very serious and is likely to involve significant physical and psychological harm to members of the Australian community. To this end, based on the evidence before the Tribunal, it is satisfied that the harm that would be caused, if it were to be repeated by JJRB, is so serious that any risk of it being repeated is unacceptable. As previously mentioned in these reasons, JJRB has been convicted of violent and sexual crimes in Australia, including ‘Sexual Intercourse without Consent – Reckless’, for which he was sentenced to a term of two years’ imprisonment. Accordingly, the nature of the harm to individuals or the Australian community should JJRB engage in further criminal conduct of this nature is likely to be significant. This weighs heavily in favour of exercising the discretion to refuse to grant JJRB the Visa.
Furthermore, the Tribunal is not satisfied that the likelihood of JJRB engaging in further criminal or other serious conduct is presently low. The Tribunal has described JJRB’s offending and its increasing seriousness before he was ultimately gaoled in 2017. In this regard, JJRB has a history of reoffending after the imposition of sentences of imprisonment have been suspended by the courts and he has therefore been given an opportunity to reform outside of a custodial environment. JJRB’s history of criminal conduct demonstrates repeated offending despite the criminal justice system affording him multiple opportunities to address his behaviour by imposing non-custodial sentences. While JJRB submitted that his offending was related to multiple contributing factors, including his alcohol and drug consumption, being a refugee in Australia and his untreated trauma and psychological issues, on the evidence before the Tribunal, JJRB did not make use of the opportunities to rehabilitate provided to him by the courts through the imposition of suspended sentences and good behaviour orders before he was charged with sexual offending in April 2015,[81] noting that he did access some drug and alcohol counselling between December 2015 and May 2016 before being sentenced in 2017.[82] The evidence before the Tribunal demonstrates that JJRB undertook some rehabilitation courses during the six months he was imprisoned from July 2017. To this end, the documentary evidence points to JJRB having completed ‘Alcohol Drug Awareness (harm) Prevention Training’ in November 2017,[83] a ‘Harm Minimisation Session’ in October 2017[84] and he was also said to have participated in ‘individual counselling with Alcohol and Drug Practitioners’.[85] The evidence suggests that this comprised two sessions.[86] JJRB told the Tribunal that he has attended counselling sessions, but had not done so recently because he could not be guaranteed access to a counsellor or psychologist for these sessions. In a personal circumstances form submitted in 2019 to the Minister’s Department in relation to the Visa, JJRB stated that he had ‘done a course on the affect [sic] of sexual assault on victims’, among others.[87] However, JJRB confirmed to the Tribunal at the hearing that he has not participated in, or completed, an adult sexual offenders course and, aside from the aforementioned harm minimisation course, there was no documentary evidence to indicate that he had undertaken any course regarding victims of sexual assault. In this regard, JJRB agreed in his evidence that he would benefit from participating in a course regarding consent.
[81] Exhibit 3, SB2, page 1023.
[82] Exhibit 1, G2, page 56.
[83] Ibid., page 57.
[84] Ibid., page 58.
[85] Ibid, page 53.
[86] Ibid., page 56.
[87] Ibid., page 73.
Ms Kris North, Forensic Psychologist, assessed JJRB by telephone on 1 July 2022 and provided a written report dated 4 July 2022 for this Tribunal proceeding, which has been considered in preparing these reasons.[88] Ms North did not give evidence at the Tribunal hearing and was therefore unable to be examined regarding her documentary evidence, but the Tribunal accepts its substance, including because her findings regarding JJRB’s mental health and risk of reoffending were unchallenged. Ms North’s opinion regarding JJRB’s risk, set out in her report was as follows:[89]
[88] Exhibit 9.
[89] Ibid., pages 12-13. Internal footnotes omitted.
Actuarial Risk Assessment
Static-99R and STABLE-2007
The Static-99R is the most widely used actuarial risk assessment instrument for determining recidivism risk for adult male sex offenders. The STABLE-2007 assesses risk factors related to recidivism that can change over time, allowing the prioritization of cases and allocation of treatment targets. [JJRB] obtained a score of 56 on the Static-99R indicating he poses a Level Iva Above Average Risk for sexual recidivism. On the STABLE 2007 [JJRB] obtained a score of 47 placing him in the moderate risk range.
[JJRB’s] combined score on the Static-99R and STABLE-2007 indicated he was a Level III Average Risk for sexual recidivism. Individuals scoring within this range often have a number of criminogenic needs relating to their psychological and interpersonal functioning and treatment to target areas of risk is recommended for offenders scoring within this range. Specifically, this rating indicates [JJRB] poses a 7.5% risk over the next five (5) years following his release for any type of sexual recidivism and research has indicated the rate of recidivism within this group is comparable to the average rate of sexual reoffending in populations of offenders convicted of sexual offences. However, with appropriate treatment up to half of the individuals within this range will make positive changes and their risk may be reduced to the Level II Below Average Risk range subsequent to treatment interventions.
…
Opinion on Risk for Reoffending
[JJRB] was assessed as posing a moderate risk for sexual recidivism at the time of sentencing, and an updated assessment also indicated he presented as a Level III Average Risk consistent with the earlier examination. A risk within this range indicates [JJRB’s] risk for recidivism could be managed should [JJRB] engage in appropriate treatment to address his risk factors for recidivism. Specifically, it is recommended future treatment address [JJRB’s] history of substance abuse which was identified as the main criminogenic risk factor in his offending. Underdeveloped coping skills relating to the management of stress, depression and anxiety were also identified as having contributed to [JJRB’s] substance use issues in the past. As such, it is also recommended that he engage in mental health treatment to assist him in managing his symptoms in the future, with a focus on the provision of psychoeducation and the development of more effective coping skills to manage unwanted emotions. Such treatment can be provided by Psychologists both in the community and in the immigration detention settings.
It was noted that [JJRB’s] sentence of two (2) years with a non-parole period of six (6) months also indicated his offences were assessed at the low to moderate end for seriousness in relation to sexual offences. Unfortunately, his relative short sentence also meant he was unable to engage in offence specific treatment whilst in custody, and had also been unable to engage in community-based offence specific treatment as a result of having been in immigration detention. As such, should [JJRB’s] appeal be upheld and he be considered for release into the community, it is recommended he engage in appropriate treatment in the community. It is recommended that Community Corrections assist in providing recommendations for appropriate treatment services depending on where [JJRB] chooses to reside. [emphasis in original]
Accordingly, Ms North’s report noted that JJRB was a moderate risk of sexual recidivism at the time of his sentencing in 2017, and her assessment was that he remains an average risk of sexual reoffending. That is, there has been no reduction in JJRB’s risk of reoffending over the last five years since he has either been in gaol or immigration detention. Ms North also noted that research indicates that ‘the rate of recidivism within this group is comparable to the average rate of sexual reoffending in populations of offenders convicted of sexual offences’.[90] Therefore, based on Ms North’s evidence, the Tribunal finds that JJRB represents an ongoing and real risk of sexual reoffending, despite the above-mentioned evidence of rehabilitation, specifically in relation to his alcohol and drug use. To this end, Ms North recommended future treatment address JJRB’s ‘history of substance abuse which was identified as the main criminogenic risk factor in his offending’ and mental health treatment.[91] In this regard, and noting again that the Tribunal did not have the benefit of Ms North’s testimony at the hearing, Ms North considered that JJRB requires further treatment regarding his previous alcohol and drug issues given these were the main reasons for his offending. As a result, based on all the available evidence, the Tribunal is not satisfied that JJRB’s risk of reoffending is presently low. Having regard to that evidence, the Tribunal finds that there is currently an ongoing and real risk of JJRB reoffending, although this may, in future, trend from average or moderate towards low risk, subject to multiple factors being secured, including rehabilitation support or treatment and employment and familial support in the community. However, the Tribunal finds that there is presently a real and not insignificant or low risk that JJRB will reoffend.
[90] Ibid.
[91] Ibid., pages 12-13.

As set out above in relation to this consideration, while subsections 198(2B) and 197C(1) provide that a non-citizen must be removed as soon as practicable if the Tribunal does not set aside the decision under review and it is irrelevant that Australia has non-refoulement obligations in respect of the non-citizen, pursuant to subsection 197C(3) of the Act, an unlawful non-citizen in respect of whom a protection finding has been made in relation to a finally determined application for a protection visa will not be liable for removal under section 198 of the Act.
By way of further background, on 24 May 2021, the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 received Royal Assent and commenced the following day. The amendments to the Act modify the effect of section 197C to ensure it does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless:
(a)the decision finding that the non-citizen engages protection obligations has been set aside;
(b)the Minister is satisfied that the non-citizen no longer engages protection obligations; or
(c)the non-citizen requests voluntary removal.
Therefore, as a result of the Tribunal’s findings regarding Australia’s non-refoulement obligations and the earlier protection finding made by a delegate of the Minister in the course of considering the Visa, JJRB will not be removed to South Sudan if the Tribunal concludes that the decision under review should not be set aside, but he will continue to be liable to indefinite detention in Australia with no fixed chronological end point, noting again the alternative options set out in paragraph 9.1(3) of Direction 90, such as removal to another country or the exercise of Ministerial discretion to grant another visa or make a residence determination under the Act.
In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55, the Federal Court of Australia observed at [123] that:
The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
JJRB spent six months in gaol for his sexual offences and has thereafter spent approximately four and a half years in immigration detention. The Tribunal accepts that the prospect of JJRB losing his liberty, or continuing not to enjoy that liberty due to ongoing and indefinite detention, is a significant matter that the Tribunal readily apprehends will negatively impact on JJRB, especially his mental health, as documented in Ms North’s report and require psychological treatment, and ongoing separation from family, although these may be somewhat alleviated through available support services, medication and familial contact via technological or other means in Australia.[147] To this end, the Tribunal finds that the prospect of indefinite detention weighs in favour of not exercising the discretion to refuse to grant JJRB the Visa. For completeness, the Tribunal has elsewhere in this decision referred to the status of JJRB’s rehabilitation. While JJRB has certainly served the requisite sentence for his criminal offending and the likely loss of liberty for an indefinite period of time is a grave consequence arising from this decision, the Tribunal weighs that potentiality against its findings regarding the seriousness of JJRB’s criminal offending. The Tribunal is satisfied that this latter factor outweighs the weight attributable to JJRB’s loss of liberty through indefinite detention in Australia. The Tribunal has found that JJRB repeatedly engaged in very serious conduct, including sexual and violent offending, and there is presently a real and not insignificant risk of him reoffending and endangering the safety of members of the Australian community.
[147] Exhibit 9.
To this end, while the Tribunal has found that Australia’s non-refoulement obligations are engaged and owed to JJRB, this consideration alone is not determinative of the application in favour of JJRB. As the Full Federal Court held in Ali v Minister for Home Affairs [2020] FCAFC 109 at [110], it is open to the Tribunal to:
conclude that Australia does owe non-refoulement obligations in respect of a person but that the risk to the Australian community posed by the person outweighs Australia[’s] compliance with those obligations such that there is no ‘other reason’.
On balance, the Tribunal finds that this other consideration weighs heavily in favour of JJRB and not exercising the discretion in subsection 501(1) of the Act to refuse to grant him the Visa.
Extent of impediments if removed
Paragraph 9.2 of Direction 90 requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: the non-citizen’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
Notwithstanding the Tribunal’s above findings in relation to international non-refoulement obligations owed to JJRB, the Tribunal separately finds that JJRB will likely face significant impediments if removed from Australia to South Sudan, noting that he left Sudan in 2000 aged nine and has not returned. However, JJRB is 32 years old, has worked in physical roles in Australia and, on his own evidence, does not have any diagnosed physical medical conditions, although he has abused alcohol and drugs while in Australia. Further, Ms North reported that during his time in immigration detention, JJRB had experienced ‘ongoing symptoms of anxiety and depression related to his immigration matters and his separation from his family members’ and she diagnosed JJRB with ‘Adjustment Disorder, With mixed anxiety and depressed mood’.[148] JJRB told the Tribunal that he is not currently on any medication for his mental health condition.
[148] Exhibit 9.
On the available evidence, JJRB is presently a South Sudanese citizen. JJRB told the Tribunal that he speaks English, which is the official language of South Sudan[149] and also Arabic, which is ‘widely spoken, given that Arabic was the official language until South Sudan’s independence’, although he does not speak the tribal dialects of his parents.[150] Accordingly, the Tribunal is satisfied that there are unlikely to be any substantial language barriers for JJRB in returning to South Sudan. However, the Tribunal does accept that JJRB would face significant cultural barriers if he returned to South Sudan given he left that country when it was Sudan as a young child before fleeing to Egypt and arriving in Australia on the Refugee Visa. He has lived in Australia from age 16 and for all of his adult life. He also has no social, family or tribal support networks in South Sudan. His life is now in Australia, including his only child. The Tribunal accepts JJRB’s evidence that he ‘will not fit there’ in South Sudan and that he would face significant difficulties establishing himself, re-integrating into South Sudanese culture and maintaining basic living standards due to the significant period of time JJRB has not resided in what is now South Sudan and also given the time in which he has resided in Australia.[151]
[149] Exhibit 2, SG1, page 6.
[150] Ibid.
[151] Exhibit 6.
In relation to available economic support, the Tribunal notes that the DFAT Report on South Sudan states that its formal economy is ‘extremely weak and underdeveloped’, with 85% of the population undertaking unpaid work.[152] Additionally, in 2015, poverty affected more than half the population, ‘contributing to increasing levels of crime’, and 76% of households survive on subsistence activities and informal trade.[153] In this regard, it is estimated that only 12% of the population are actively employed, but this is difficult to quantify and DFAT assessed the security and economic situation to have deteriorated, with worsened formal and informal employment opportunities.[154] Accordingly, on the available evidence, the Tribunal is satisfied that JJRB would have limited economic support available in South Sudan.
[152] Exhibit 2, SG1, pages 6-7.
[153] Ibid., pages 7-8.
[154] Ibid., page 8.
In relation to medical support, the DFAT Report states that South Sudan’s population has ‘extremely poor access to health care’ and accurate data on health indicators is often non-existent or outdated.[155] According to available data, South Sudan ranked 169^th out of 187 countries on the United Nations’ Development Programme’s 2015 Human Development Index.[156] It has an average life expectancy for men of 54.7 years and is only slightly higher for women.[157] The DFAT Report also stated that only 55% of the population have access to improved sources of drinking water, around 38% walk more than 30 minutes one way to collect water, while 80% do not have access to toilet facilities. The ‘health situation has deteriorated further as a result of the worsening conflict and economic situation’.[158] The Tribunal also accepts that COVID-19 will likely have a profound impact on South Sudan’s health outcomes, economy and security environment for a number of years.
[155] Ibid.
[156] Ibid.
[157] Ibid.
[158] Ibid.
Having regard to the available evidence, the Tribunal accepts that any available support for JJRB in South Sudan will be of a significantly lesser standard to that which is available to him in Australia, including social, medical and economic support. As previously stated in these reasons, the Tribunal is satisfied that there is a real chance or real risk that JJRB will suffer serious and significant harm if he was returned to South Sudan. The Tribunal accepts that JJRB’s mental health will deteriorate if he is returned to that country and will likely have ‘extremely poor access to health care’ and will have significant difficulties accessing any required treatment and medication, including for his mental health condition, although noting that JJRB is not presently taking medication for this condition.[159] Due to this condition, JJRB may again be susceptible to misusing alcohol and drugs, despite committing to refrain from their consumption, although their availability in South Sudan is unknown. Accordingly, the Tribunal is satisfied that JJRB would have limited medical support available in South Sudan.
[159] Ibid., page 7.
The Tribunal also accepts that JJRB would have no social support if he were to return to South Sudan because all of his family reside in Australia. To this end, the Tribunal accepts the submission that remaining close to his family in Australia is important for their continued support of JJRB and given the nature of Sudanese culture and families.[160] In this regard, the Tribunal also accepts that JJRB will be required to secure accommodation in South Sudan without familial or other social support, which may be difficult but, given the history of his ability to work, including in physically demanding roles, and again noting the economic situation, the Tribunal is satisfied that this potential impact is marginally lessened. While JJRB stated in 2019 that he had knee surgery, he did not in his evidence disclose this as presently affecting his physical health and there was evidence before the Tribunal that JJRB worked as a labourer and removalist, among other jobs, while in the Australian community.[161]
[160] Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 25 July 2022, citing Slavic, M., et. al., Separation from family and its impact on the mental health of Sudanese refugees in Australia: a qualitative study, ANZJPH, 2013, volume 37, number 4, pages 383-388.
[161] Exhibit 1, G2, page 74; G5, pages 218-219.
As the Tribunal has already found with respect to the consideration of Australia’s international non-refoulement obligations, there are significant impediments that would arise if JJRB were returned to South Sudan, noting also that JJRB does not have a right to reside in any third country. Those matters canvassed in relation to non-refoulement are also relevant to this factor regarding the extent of impediments if JJRB is removed to South Sudan and this other consideration weighs in favour of not exercising the discretion to refuse to grant JJRB the Visa.
Accordingly, for the aforementioned reasons, the Tribunal considers the extent of the impediments for JJRB if he were removed from Australia and returned to South Sudan are significant. As a result, the Tribunal finds that this other consideration weighs heavily in favour of JJRB and not exercising the discretion under subsection 501(1) of the Act to refuse to grant him the Visa.
Impact on victims
Paragraph 9.3(1) of Direction 90 relevantly states that decision-makers must consider the impact of the section 501 decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available. In the absence of any evidence in relation to this consideration, the Tribunal finds that it is neutral in the decision-making process and is given no weight.
Links to the Australian community
Paragraph 9.4 of Direction 90 states that, reflecting the principles set out at paragraph 5.2, decision-makers must have regard to the following paragraphs of Direction 90:
9.4.1 The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. in doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrives as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
9.4.2 Impact on Australian business interests
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The strength, nature and duration of ties to Australia
As set out above in these reasons, paragraph 9.4.1(1) of Direction 90 requires the Tribunal to consider any impact of the decision on JJRB’s immediate family members in Australia.
JJRB arrived in Australia with his family in 2007 as a 16 year old. Three years after his arrival, JJRB commenced offending. He was ultimately sentenced to a period of imprisonment in 2017 and, since the end of his incarceration, JJRB has resided in immigration detention. That is, JJRB was living in the Australian community, and not in some form of detention in Australia, for just over 10 years.
The Tribunal accepts that an unfavourable decision for JJRB will have a negative impact on his immediate family members, most particularly his child, for reasons previously described in this decision, and on JJRB’s mother, who JJRB said suffers from high blood pressure and, although there was no other evidence of this or any other medical condition, the Tribunal accepts and that she may require assistance from her children.[162] However, in this regard, there was no evidence that JJRB has previously engaged in an active caring role in relation to his mother, who lives alone in the ACT, although the Tribunal accepts that he may do so if released into the community, at least in the initial period while residing in the ACT before moving to Melbourne for work. While JJRB’s representative had previously contended that he is ‘the only son in the family’ and culturally the caring responsibility for parents would fall upon him as the son, JJRB confirmed in his evidence to the Tribunal that he has another brother based in Melbourne and did not contend that he was solely responsible for the care of his mother, which is evidenced by him seeking to relocate to Melbourne to take up employment with his brother if released into the community.[163] Nevertheless, for the avoidance of doubt, the Tribunal accepts that an adverse decision would have a significant impact on JJRB’s mother. The Tribunal also accepts, for reasons outlined in Primary Consideration 3, that an adverse decision would likely negatively impact the relationship between JJRB’s son and the child’s paternal grandmother, which weighs in favour of JJRB.
[162] Exhibit 1, G2, page 72.
[163] Ibid., page 95.
While there was limited documentation regarding the impact on JJRB’s broader family, it accepts that JJRB has a large and close extended family who all live in Australia and that their links are strong. In addition to JJRB’s mother, these include four sisters and a brother and a total of nine nieces and nephews, noting also that JJRB’s late father is buried in Australia. JJRB submitted in 2019 that one or more sisters suffer psychological health issues ‘due to the strain this has put on them as well as their kids’.[164] To this end, the Tribunal has considered the statements in support of JJRB, the impact on his family and accepts that his family in Australia would be negatively impacted by a decision to exercise the discretion to refuse to grant him the Visa and that this weighs in JJRB’s favour. JJRB is plainly very close to his family in Australia and has maintained strong links to them despite not living in the community for five years.
[164] Ibid.
For completeness, and despite being divorced, the Tribunal also considers JJRB’s former wife as his family, although there was no direct evidence of the impact of the decision on her. The Tribunal accepts that JJRB’s former wife’s role as their child’s primary carer would continue and not be assisted by his ongoing absence, noting again that she is supported by her own mother in this role.
While paragraph 9.4.1(2) of Direction 90 expressly relates to consideration of whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, and does not expressly relate to the refusal to grant a visa, which is applicable in this proceeding, for completeness, the Tribunal considers the strength, nature and duration of any other ties that JJRB has to the Australian community.
As set out above, JJRB has resided in Australia since 2007, but has not lived in the community since 2017. That is, he spent 10 years in the Australian community between 2007 and 2017. He did not arrive as a young child, but the Tribunal accepts that having arrived at age 16, JJRB was relatively young and has spent his entire adulthood in this country; he is now 32 years old. However, from 2010 to 2015, JJRB committed criminal offences in Australia. This offending started three years after his arrival in this country, which the Tribunal does not accept is soon after he arrived, but increased in seriousness and led to a term of imprisonment due to the commission of sexual crimes against a woman that the Tribunal has found, pursuant to Direction 90, were very serious. As a result of his repeated and serious offending over many years, JJRB has made a modest positive contribution to the Australian community, noting again that he has not lived in the community for the five years since 2017. In this regard, JJRB was employed for periods of time during his ten years in the community and therefore paid income tax on those occasions.[165] He also told the Tribunal that he played organised soccer and attended church, but said that he has not done any volunteering and did not disclose any other relevant links, including any other social ties in Australia beyond his own family. The Tribunal also notes that JJRB completed Year 11 of secondary school, but did not complete Year 12 and his brother has offered JJRB employment as a truck driver and labourer with his landscaping business in Melbourne if he is released into the community.[166]
[165] Exhibit 1, G5, pages 218-219.
[166] Exhibit 10.

On balance, for the foregoing reasons, the Tribunal finds that the strength, duration and nature of JJRB’s ties to Australia favours JJRB, but the weight attributable to this consideration is moderated.
Impact on Australian business interests
On the evidence before the Tribunal, JJRB had periods of employment over the 10 years he was living in the Australian community, including as a labourer in the construction industry and as a removalist, before he was imprisoned in 2017.[167] Paragraph 9.4.2 of Direction 90, set out above in these reasons, relevantly states that an employment link would generally only be given weight where the decision under section 501 of the Act would ‘significantly compromise the delivery of a major project, or delivery of an important service in Australia’. There was no evidence before the Tribunal that the decision under section 501 of the Act would have the impact contemplated by this consideration. Accordingly, the Tribunal finds that this consideration is neutral in its decision and is given no weight.
[167] Exhibit 1, G2, page 46.
Conclusion: Links to the Australian community
For the foregoing reasons, the Tribunal finds that this ‘other consideration’, links to the Australian community, weighs moderately in favour of JJRB and against exercising the discretion to refuse to grant him the Visa.
Unlisted ‘other consideration’ – the Bugmy principles and reduced culpability
In his written Statement of Issues dated 4 July 2022, JJRB contended that the High Court of Australia’s judgment in Bugmy v The Queen [2013] 249 CLR 571 (Bugmy) and its associated principles were applicable to JJRB in this proceeding. The plurality in Bugmy relevantly stated that:[168]
[168] Bugmy at [12], [36], [37], [40], [43] and [44]. Internal footnotes omitted.
The appellant is an Aboriginal man who was raised in Wilcannia, a town in far-western New South Wales. He is one of a number of siblings. He grew up in a household in which alcohol abuse and violence were commonplace. He has had little formal education and is unable to read or write. He started drinking alcohol and taking prohibited drugs when he was 13 years old. He reports having witnessed his father stabbing his mother 15 times. He and his siblings all have records for violence. The appellant's record of juvenile offending commenced when he was 12 years old. From that age he was regularly detained in juvenile detention centres. When he turned 18 he was transferred to an adult prison. He has a long record of convictions including for offences of violence. He was 29 years old at the date of the present offences. He has spent much of his adult life in prison. He gives a history of repeated suicide attempts. He has maintained a long-term relationship with a woman by whom he has a daughter. He and his partner are both alcoholics. The child has been placed in the care of her maternal grandmother.
…
There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice.
An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence.
…
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
…
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
JJRB contended that:[169]
similar to Aboriginal Australians and the above case [Bugmy], refugees ‘as a group are subject to social and economic disadvantage measured across a range of indices’ says ‘nothing about a particular … offender’ but held that a background of social deprivation remains a relevant consideration for repeat offenders.
In like manner, the unique circumstances of refugees which encompass our client is a relevant consideration in determining the culpability of individuals including our client.
His culpability in his relevant offences and the elements affecting his character are to be moderated by considering his refugee background fleeing his home country due to political prosecution, social disadvantage, unstable childhood which he fled from South Sudan to Egypt and then arriving in Australia at age 16, subsequent drug use and strife in his martial and personal life.
He continued to suffer financial and other deprivations as a teenager in Australia in a household where his father was afflicted with alcoholism. He grew up witnessing numerous severe disputes with his mother.
After settling in Australia, our clients continued to face discrimination and struggled to adjust to Australian society due to cultural and language barriers as well as falling in with the wrong crowds.
Even after his marriage with his ex-wife, he continued to suffer marital issue with her and disharmony with his in-laws resulted in their separation and divorce.
Following the divorce, our client took to drugs and alcohol to relieve his depression, suicidal thought and stress.
In reply to paragraph 23 in the delegate’s decision dated 20 April 2022, our client committed the various offences due to his youthfulness and various traumas in his life including witnessing killings as a child in South Sudan (where his father was persecuted).
[169] Applicant’s Statement of Issues dated 4 July 2022.
The Minister, in his Statement of Facts, Issues and Contentions addressed JJRB’s contention as follows:[170]
the purpose served by Primary Consideration 1 is, at its heart, protective; not punitive. Although Primary Consideration 1 calls for an examination of the seriousness of a non-citizen’s misconduct in Australia and the risk that that misconduct may be repeated, the Tribunal's task in having regard to this consideration is not comparable to the sentencing task undertaken by a Chapter III court, which must necessarily grapple with an offender's moral culpability for his or her offending.
No part of Primary Consideration 1 prescribes an assessment of the moral culpability of an applicant for their past misconduct. Rather, as the text of Direction 90 makes clear, the sole purpose of Primary Consideration 1 is the protection of the Australian community from those who would perpetrate criminal and other anti-social conduct. Consequently, the Applicant's submissions, in his SFIC, as to his mitigated moral culpability are misguided.
[170] Respondent’s Statement of Facts, Issues and Contentions dated 17 July 2022, paragraphs 20-21.
In JJRB’s written Reply document dated 25 July 2022, it was submitted that the Bugmy principles are a relevant additional ‘other consideration’ for the Tribunal in this proceeding. It stated that Bugmy ‘relates to the reduced culpability due to our client’s myriad difficult life circumstances which caused or contributed to his repeated offences in different areas of criminal and/or traffic law’ and JJRB’s ‘life circumstances prior to and during his relocation to Australia provides for a relevant consideration in evaluating his culpability for those offences since 2007’.[171] This submission was pressed as a standalone ‘other consideration’ by JJRB’s Counsel at the hearing. A number of Tribunal decisions, which referred to Bugmy, accompanied JJRB’s Reply. The relevant excerpts of these decisions are set out below.
[171] Reply to Respondent’s Statement of Facts, Issues and Contentions dated 25 July 2022.
In Mursal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1164 (Mursal), the Tribunal noted that:[172]
The circumstances in which an offender may be considered to have reduced moral culpability, for the purposes of the sentencing exercise, which I note is quite different from the exercise the Tribunal is conducting in this proceeding, are discussed in Bugmy v the Queen...The decision does not support the proposition that a deprived background will necessarily reduce an offender’s moral culpability.
[172] At [219].
The Tribunal in Mursal, under Primary Consideration 4, was not persuaded that the Applicant’s background lessened his moral culpability, but took into account his background and mental health issues ‘as far as they explain, but do not excuse, his offending’.[173]
[173] At [221].
In Pillay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 270 (Pillay), the Tribunal again noted that Bugmy ‘does not support the proposition that a deprived background will necessarily reduce an offender’s moral culpability’ [emphasis in original].[174] It also stated, having regard to the Court’s discussion in Bugmy, that ‘establishing a causal connection between a deprived upbringing and subsequent offending can cut both ways in the sentencing process’.[175] Again, the Tribunal in Pillay correctly noted that the sentencing exercise conducted by courts is ‘fundamentally different’ to that assessment process undertaken by the Tribunal in applications of this nature, although both take into account the protection of the community.[176] The Tribunal in Pillay was not persuaded that the Applicant’s background reduced his moral culpability, although it had regard to his background for the purpose of its consideration process under Direction 90.[177]
[174] At [236].
[175] At [237].
[176] At [238].
[177] At [239]-[240].
In JWKG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 21 (JWKG), the Tribunal noted that the sentencing Judge applied the Bugmy principles, among other things.[178] However, the Tribunal was not asked to, and did not, separately consider Bugmy in its decision.
[178] At [56].
As in JWKG, the Tribunal in MXDK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3762 noted that the sentencing Judge applied the Bugmy principles, but did not itself consider these in its decision-making process under the Act.[179]
[179] At [22].
Lastly, in MKNT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4089, the Applicant submitted that ‘if a background of alcohol abuse and violence should be taken into account in determining the appropriate minimum sentence, and therefore eligibility to parole, it was also relevant in exercising the administrative discretion under subsection 501CA(4)’.[180] The Tribunal stated that:[181]
The extent to which the rule in Bugmy is applicable in exercising the administrative discretion within subsection 501CA(4) is unclear. If it is relevant at all, it would seem to be most relevant to expectations of the Australian community (PC3) contained in paragraph 13.3 [of the now revoked Direction 79]; rather than PC1 (which deals with the protection of the Australian community). It may be that, within the context of PC3, what might otherwise be regarded as a most serious case of offending requiring removal may be mitigated somewhat by the natural sympathy engendered by a deprived and dysfunctional childhood.
PC1 is concerned with public safety, and the risk of reoffending. As noted by the plurality in the passage above, early deprivation causing serious damage to the individual may ‘compromise the person’s capacity to... learn from experience’. In such a compromised state, a person may be more likely to reoffend.
[180] At [126].
[181] At [127]-[128].
As noted in Mursal and Pillay, the relevance of reduced moral culpability in the sentencing process is readily apparent, but the circumstances in which an offender may be considered to have reduced moral culpability, for the purposes of the sentencing exercise undertaken by the courts, is significantly different from the exercise the Tribunal is conducting in this proceeding pursuant to the Act and Direction 90, although it is accepted that both processes consider the protection of the community. In Bugmy, the sentencing judge found that there was a causal connection between the extreme violence in the offender’s background and his subsequent violent offending. However, relevantly for this proceeding, the ACT Supreme Court in sentencing JJRB for his sexual offending made no express reference or findings with respect to the Bugmy considerations. Moreover, as stated in previous Tribunal decisions, Bugmy does not support the proposition that a deprived background will necessarily reduce an offender’s moral culpability.
Based on the available evidence, and having regard to the Tribunal’s task, it is not persuaded that JJRB’s background lessened his moral culpability, but these matters, including his childhood, experience in Australia on a Refugee Visa, alcohol and drug use and his mental health have been considered throughout this decision in relation to the specific requisite considerations in this proceeding under Direction 90. JJRB was afforded numerous opportunities through good behaviour orders and suspended sentences to reform his criminal offending, however this did not occur and that offending escalated in its seriousness to the point where he committed a very serious sexual crime against a woman for which he received a term of imprisonment. The Tribunal finds that while JJRB’s background, including his early childhood, may explain his offending, it is not satisfied that it excuses, reduces or mitigates his moral culpability for that offending. As a result, on balance, the Tribunal finds that this unspecified ‘other consideration’ neither weighs for nor against the exercise of the discretion to refuse to grant JJRB the Visa. That is, it is neutral in the Tribunal’s decision-making process pursuant to Direction 90 and the Act.
CONCLUSION
JJRB does not pass the character test as defined in subsection 501(6) of the Act because he has a ‘substantial criminal record’. Accordingly, pursuant to subsection 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. As a result of his failure to pass the character test, JJRB was refused the Visa by a delegate of the Minister in April this year. JJRB applied to the Tribunal for review of that decision. It was common ground between the parties, and the Tribunal has found, that JJRB does not pass the character test. The remaining issue for determination by the Tribunal was whether it should exercise the discretion under subsection 501(1) to refuse to grant JJRB the Visa. This required a consideration of Direction 90.
On balance, the Tribunal is satisfied, based on its assessment of all considerations in Direction 90, that the three relevant listed ‘other’ considerations, together with Primary Consideration 3, regarding the best interests of minor children in Australia, which all weigh in favour of not exercising the discretion to refuse JJRB the Visa, do not outweigh the two relevant remaining primary considerations, being Primary Consideration 1, the protection of the Australian community, and Primary Consideration 4, the expectations of the Australian community, which both weigh heavily in favour of exercising the discretion to refuse the Visa. The Tribunal has found that Primary Consideration 3 weighs moderately in favour of JJRB, together with the other listed considerations, international non-refoulement obligations and extent of impediments if removed, which both weigh heavily in favour of JJRB, and links to the Australian community, which weighs moderately in his favour. The Tribunal also notes that the unlisted other consideration, regarding the Bugmy principles and reduced culpability, weighs neither for nor against JJRB and is neutral in the decision-making process.
The Tribunal further notes that, pursuant to paragraph 7(2) of Direction 90, primary considerations should generally be given greater weight than other considerations. In this regard, the Tribunal has found that the significant weight afforded to Primary Consideration 1 and Primary Consideration 4 outweighs those considerations in favour of JJRB. Accordingly, JJRB’s application before the Tribunal is unsuccessful.
DECISION
The Tribunal affirms the decision under review to refuse to grant the Applicant a Protection (Class XA) visa pursuant to subsection 501(1) of the Act.

I certify that the preceding 219 (two hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

............................[sgd]............................................
Associate
Dated: 18 August 2022

Date(s) of hearing: 28 and 29 July 2022

Date final submissions received

25 July 2022

Counsel for Applicant:

Mr James Sabharwal

Solicitor for Applicant:

Ms Radhika Reddy, Legal on London

Solicitor for Respondent:

Mr Richard Donaldson, Clayton Utz

Date(s) of hearing:	28 and 29 July 2022
Date final submissions received	25 July 2022
Counsel for Applicant:	Mr James Sabharwal
Solicitor for Applicant:	Ms Radhika Reddy, Legal on London
Solicitor for Respondent:	Mr Richard Donaldson, Clayton Utz